Rise in Violent Crime Requires New Approach to Criminality

Violent crime is going up and up, and the crime that professionals watch most closely -- robbery -- is going up faster than any other.

The honeymoon, in California, is over. The surge must be taken seriously, and smartly.

We are incapacitating more people than ever before. Lead by California’s biggest ever prison building boom (fuelled, in turn, by the equally fast-growing prison guards lobby), we have tried without success to “lock our way” out of the crime problem.

Three strikes laws, mandatory minimums, and open hostility to the idea of rehabilitation have increased both the number of inmates serving time in state and federal prison, and the length of their sentences.

For years, advocates of these measures pointed to declining crime rates and said: See. What we’re doing is working.

They don’t seem to be saying much now.

Last year, violent crime in the state increased 2.5 percent. That was the biggest increase in 15 years. For the first six months of this year, violent crime in California is up 4 percent over the equivalent period from last year, with robberies, up a whopping 9.7 percent, leading the way.

Robbery rates matter because robbery tends to be the crime of choice of the violent predators who commit a disproportionate number of all crimes. These rates are thus seen as a sort of “leading indicator” of what’s to come, and they are pointing in the wrong direction.

Eighteen years ago, I used to tell candidates who I was advising that they should pledge that if elected, violent crime would decrease steadily during their terms. My certainty of this strategy came not from some magical policy prescription, although I have long been a supporter of maintaining order (that is, fixing what my friends Jim Wilson and George Kelling refer to as “the broken windows” that in turn cause fear and can lead to more serious crime) but from the fact that after 10 years of teaching criminal law and co-organizing numerous Justice Department sponsored seminars on dealing with dangerous offenders, I knew my demographics.

Eighteen years ago, the number of young men between the ages of 18 and 25 -- the prime crime years -- was set to decrease steadily for the next decade. Even if you did absolutely nothing, crime was likely to decrease because there would be fewer would-be criminals to engage in it.

Demographics is no longer operating in our favor. The number of young men in the “wrong” age group is growing. In the meantime, our prisons are stuffed with aging men, incarcerated on lengthy, even life, sentences, with the incapacitative effect of keeping them locked up decreasing every year.

What I mean, and criminologists argue, is simply this: When you lock up a young man in the prime of his criminal career, crime should at least be reduced by the number of crimes he would have committed if he was outside the prison walls. When he’s 20, that may be substantial. But when he’s 40? Or 50? When was the last time you heard of a middle aged robber?

The health care costs of an aging prison population are growing, while the crime reducing value of their incapacitation decreases.

Demographics is not, to be sure, the only factor behind the increasing crime rate. Police departments point out, rightly, that since 9/11 the public safety focus has shifted from fighting crime to fighting terrorism (even if most of us remain far more vulnerable to crime); police departments have seen federal aid drop by $2 billion since 2002, according to the National Association of Police Chiefs, even as gang activity in many major cities is up.

Another factor experts point to is the fact that there are fewer jobs for people with limited skills: the phenomenon of young people “aging out” of crime depends not only on their forming personal ties (marriage and family) that make the risks of crime appear relatively greater, but also on their ability to find legitimate jobs to replace at least some of the income from crime.

Fighting crime effectively requires clear priorities. No one is suggesting that we do less in the fight against terror. Demographics are what they are. For too many years, the political debate about crime has been dominated not by an intelligent discussion of options, but by gamesmanship as to who is “toughest,” which too often produces policy by slogan, that in turn results in much needed prison beds that should be reserved for violent criminals instead being used for nonviolent and sometimes minor offenses.

Criminologists have long understood that most violent crimes are committed by a small subgroup of all criminals: the violent predators, the right tail of the right tail on the curve, and that if we could identify those criminals early in their career, rather than waiting until the end, which is what three strikes laws tend to do, selective incapacitation could maximize crime reduction at lower cost.

The idea was that punishment should fit the criminal, as well as the crime; since there is no “perfect” punishment for robbery, judges should be given both the discretion and the information they need to distinguish among robbers.

Twenty years ago, my then Harvard colleagues, Mark Moore and George Kelling, and I wrote a book urging police and prosecutors to consider selective incapacitation as a frontline crime fighting strategy, but to do so in a way that respected constitutional rights to the maximum extent possible. We called for more research to identify the factors that predict future criminality, so as to sharpen the system’s focus on the worst offenders while reducing the number of “false positives” wrongly identified as violent predators.

The latest numbers, and the inevitable limits on crime-fighting budgets in a dangerous world, suggest that it may be time to revisit that approach.

Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

Estrich's books include the just published "Soulless," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.